Ending the Stigma and Prosecution of Self-Administered Abortions

In just the first three months of this year, 431 abortion restrictions were introduced at the state level. Plus, 2017 has seen the confirmation of anti-choice Supreme Court Justice Neil Gorsuch, and the reinstatement of the Global Gag Rule (an international policy that prohibits nongovernmental organizations across the globe that receive US family planning funds from advocating for or even discussing abortion). Add in the 338 state-level restrictions passed between 2010-2016, and it is increasingly clear that abortion access — at least in the short term — is slipping away in this country.

Now that the president has proposed a budget to completely defund Planned Parenthood and further shift the burden of abortion care to already overburdened independent clinics, it’s no wonder that millions of people are afraid they will lose access to in-clinic procedures. What will abortion care look like in the coming months and how can reproductive justice advocates best reduce the harm our elected officials are set on unleashing?

Because abortion has existed as long as pregnancy, the need for abortion care cannot be regulated away; only legal, clinic-based abortion can be eliminated. It’s no wonder that whispers of an increased interest in self-administered abortion have been circulating among activists and advocates. Self-administered abortion has been safely and effectively performed for centuries by Indigenous people, midwives and those in doula-like roles all over the world. What’s new is the selective prosecution of those involved by overly aggressive, ideologically driven prosecutors against a backdrop of clinic closures.

The criminalization of pregnant people and their support networks must stop.

While few states explicitly ban individuals from ending their pregnancies at home without direct supervision by state-sanctioned physicians, there are 38 states that are attempting to frame abortions performed without a licensed physician as an unlawful practice of medicine. However, under Roe v. Wade such attempts are actually unconstitutional, according to multiple legal experts with whom I spoke. In the absence of more explicit laws criminalizing individuals for ending their pregnancies, rogue prosecutors backed by anti-choice state legislators and governors have instead twisted existing laws to criminalize the act and imprison people — most famously Bei Bei Shuai and Purvi Patel in Vice President Mike Pence’s home state of Indiana. And most recently, a 1950s law was used to arrest 43-year-old Chesterfield County, Virginia, resident Michelle Frances Roberts in April for “producing abortion or miscarriage” last year in the third trimester of her pregnancy. The misuse of these laws means that even in states where self-administered abortion is not banned outright, obtaining and ingesting medications or herbal remedies with the intention of ending a pregnancy can leave people open to legal consequences.

For centuries, care related to pregnancy was the purview of individuals and their caregivers within the community. Abortion simply existed as a fact of life in the US until the 1800s, when states began passing laws to criminalize the ending of a pregnancy. Over the decades — despite rulings like Roe v. Wade, which ended the enforcement of unconstitutional state bans on abortion, legislators have found ways to criminalize pregnant people and their choices.

Now that the country is facing an acceleration of this unconstitutional criminalization, some of us in the reproductive justice community are spending much of our time discussing harm reduction. How can we as advocates, along with reproductive health supporters and allies, support the most vulnerable and marginalized people in retaining and regaining control over their bodies and lives?

One answer is to end the stigma and persecution of those engaging in an activity that has existed as long as pregnancy: self-administered abortion.

The Demonization of Self-Administered Abortion

The first step toward ending an injustice is typically education and the reduction of stigma. One reason prosecutors, attorneys general and state legislators have largely gotten away with imprisoning people who “take matters into their own hands” is that the general public doesn’t remember the days when people safely terminated pregnancies privately. Prosecutions have targeted marginalized people — typically people of color, immigrants and poor people — while relying on the public assumption that there’s no safe way to self-administer an abortion.

It’s time we set the record straight on what self-administered abortion looks like and why people choose this method, while keeping in mind that it cannot take the place of clinic-based care. No one method or setting is ideal for every person. As with other aspects of reproductive health care, the patient must be trusted to know what’s best for them.

Medication abortion is the most common at-home method, whether obtained by prescription or another avenue, and it includes the use of misoprostol — one of the safest drugs on the market. (Medication-induced abortion obtained through prescription typically also includes the drug mifepristone.) Providers and experts who spoke with Truthout both on and off the record indicated that the biggest risks of taking misoprostol incorrectly are a stomachache or remaining pregnant when the patient doesn’t want to be. An incomplete miscarriage happens most often when the patient is past the nine-week gestation cutoff point recognized by abortion providers in the US as well as the World Health Organization.

Daniel Grossman, MD, a professor of obstetrics, gynecology and reproductive sciences at the University of California, San Francisco, and director of the university’s Advancing New Standards in Reproductive Health (ANSIRH) research group, explained on a press call following the November election that misoprostol alone — rather than paired with mifepristone as in the standard physician prescribed protocol — “is about 85 percent effective to induce a complete abortion. Women in Texas who reported using it overwhelmingly report having an uncomplicated abortion.”

Data on who attempts to self-administer abortion is scarce due to the private nature of the act as well as the reasons why patients decide to terminate their pregnancies at home. Grossman explained that women born outside the US are twice as likely to do so irrespective of their heritage, and in Texas, members of border communities that are largely Latinx are familiar with how to access misoprostol without a prescription.

In their 2012 study published in the New England Journal of Medicine titled “Cutting Family Planning in Texas,” Grossman and colleagues lay out the reasons that make self-administered abortion the best option for some women. Some participants mentioned obstacles accessing clinic care, while others wanted to avoid abortion clinics or simply had a preference for self-administering. Many mentioned barriers like money and avoiding the stigma and shame of entering a clinic. Approximately 7 percent of the people they interviewed reported trying to end a pregnancy before they went to a clinic.

“We do not have clear data indicating that legal restrictions on abortion result in increasing self-administered abortion in the US,” said Grossman. “Though patients in Texas report self-inducing because their nearest clinic closed, it could be the proximity to Mexico where self-induction is common that makes it higher.”

Grossman made it clear that his concern is not that self-induction is dangerous, but that the legal and political climate can make those who terminate a pregnancy at home into targets.

“I am concerned as a provider and a physician that potentially women in an environment where they may fear criminalization may be fearful of seeking care in a clinical setting,” he said.

The more self-induction is demonized, the more nervous people are about seeking follow-up care. It’s important to note that legally, no patient need disclose that they have ingested misoprostol or other self-induction medications (or even herbs). Because medical staff are often unclear about their reporting duties should they suspect self-induction, it can be safer to simply explain that you are pregnant and bleeding. By the time a patient seeks care, misoprostol will have been absorbed, leaving no indication that the patient is presenting with anything other than pregnancy complications, most likely a miscarriage.

Experiences Within the Latinx Community

Jessica González-Rojas, executive director of the National Latina Institute for Reproductive Health, spoke on the press call about the particular challenges that face her community.

“We are powerful, we are resilient. In fact, for generations we have taken charge of our own health care in myriad ways when the health care system failed us,” said González-Rojas. “We have taken herbs, sought care from community elders and curanderas … gone online to find answers. Because when access is taken away, we will still find a way to care for ourselves and one another.”

At the time — in the wake of the 2016 election — advocates and communities were preparing for an assault on all manner of reproductive health care (which has now begun).

“Latinas in the United States face so many barriers to getting the reproductive health care that we need. We are more likely to experience unintended pregnancy, but less likely to be insured or otherwise able to afford reproductive health care,” said González-Rojas. “In today’s climate of unprecedented restrictions on abortion care, some of this self-help comes from pure necessity.”

She went on to detail logistical and legislative barriers, including the Hyde Amendment, which prohibits federal funding from covering abortion care, and which can leave many of those in the Latinx community unable to afford care.

“For all these reasons and more, a Latina may decide — or feel it is necessary to — self-administer an abortion,” she continued. “Once a Latina — or anyone — has decided to end their pregnancy, they should be able to do so safely and effectively. They should have access to accurate, unbiased information about options. They should be able to get care in a clinic if that’s what they decide they need, and if they decide to take health care matters into their own hands, they should not be punished, criminalized or forced into the shadows.”

Laws Stretched by Overzealous Prosecutors to Criminalize Self-Induced Abortion

But the shadows are where patients who self-administer abortion are relegated despite Roe v. Wade indicating nothing about who had a right to perform procedures, only that all involved in those procedures have a constitutional right to privacy while doing related acts. The murky state of perceived legality or illegality when it comes to self-induction is not as simple as saying all is well in one region, but definitely illegal and punishable by severe prison sentences in others. The only way to track such things is to wade into those murky waters and take on the 40 known types of laws researched by UC Berkeley School of Law’s SIA (self-induced abortion care) Legal Team.

Jill E. Adams, JD, the executive director of the Center on Reproductive Rights and Justice at the UC Berkeley School of Law, explained in the press call and a lengthy follow-up call with Truthout that when it comes to legal threats to self-induced abortion, 2017 is progressing just as expected.

“[There] could be a call to arms for abortion opponents to turn up the heat on the criminalization of self-induced abortion,” Adams explained. “And in the new political reality of 2017, we could foresee an emboldened anti-choice movement that places women who end their own pregnancies in the bullseye of their target. These women have already been targeted in at least 17 known arrests for self-induced abortion. And we suspect the actual numbers of related arrests could be much higher.”

Sometimes these arrests are for unlawful practice of medicine in the 38 states that are attempting to require abortions to be performed by a licensed physician. Beyond this seemingly clear-cut, though actually unconstitutional prohibition on a non-physician-guided abortion, legislators and prosecutors have had to get creative.

“Our research has uncovered 40 different types of laws that overzealous prosecutors have used, or that prosecutors who are politically motivated to punish people may try to stretch and apply to women who end their own pregnancies and to those who help them,” said Adams. “To be clear, not every state has every one of these 40 types of laws on the books and not every DA is going to be so brazen as to abuse the criminal justice system by applying them.”

Adams explained that most of these 40 types of laws fall into the following six categories:

1.) Unlawful practice of medicine
2.) Physician-only abortion provision restrictions
3.) Homicide, including feticide
4.) Child abuse such as assault, neglect, etc.
5.) Mishandling of a corpse
6.) Drug-related charges such as possession and solicitation

“The relative legality of any particular act in any particular state is determined by a complex cobweb of criminal, civil and regulatory laws that prosecutors may manipulate and misapply to alleged acts of self-induced abortion,” said Adams. “Courts reviewing such prosecutions have generally sided with people who end their own pregnancies. But even though abortion itself is legal, and the US Supreme Court has never authorized arrest for abortion, those who end their own pregnancies may risk unjustified arrest and imprisonment under laws that limit abortion provision to licensed health care workers and that criminalize self-induced abortion.”

It’s not, strictly speaking, legal and constitutional to be arresting people who self-induce, but the existing tools of our criminal punishment system have set up this group of already vulnerable people to be further targeted.

The practice of criminalizing pregnant people is also a threat to public health.

“By threatening women with jail for ending a pregnancy or seeking medical care after doing so, criminalization may frighten them away from getting important, needed care,” said Adams. “If a woman has decided to self-administer an abortion, she needs to have access to accurate information and be able to seek backup medical care if she needs it without fear. The chilling effect on the doctor-patient relationship could be severe — and we never want to discourage a patient from seeking medical care if she’s worried about her health, nor do we want to force providers to act as agents of law enforcement.”

Purvi Patel of Indiana and Anna Yacca of Tennessee were both sent to jail after seeking medical care following alleged self-induced abortions. Yacca’s charges include criminal abortion, procurement of a miscarriage and aggravated assault with a deadly weapon — the coat hanger she used to attempt induction.

Farah Diaz-Tello, SIA Legal Team Senior Counsel at Center on Reproductive Rights and Justice at UC Berkeley School of Law, explained on the press call how the prosecution of these patients causes serious conflict for the medical community.

“One devastating impact of laws that criminalize pregnant women is confusion about the role of providers in reporting to police, leading to women being needlessly reported. When care providers are forced to act as law enforcement agents, patients are treated as suspects,” said Diaz-Tello. “Pregnant women who have lost or ended a pregnancy are treated differently from other people in nearly every medical context. In no other medical context is someone threatened with jail for administering their own medical care. In no medical context would it be acceptable for someone to be subjected to a bedside interrogation with no attorney present as it happened in several of these cases.”

And then there’s the disparate nature of who is affected: predominantly, marginalized communities.

“For those who’ve studied the impact of laws intended to restrict abortion and seen the impact on already marginalized communities, it will come as no surprise that laws and prosecutions that criminalize self-induced abortion have been disproportionately used against poor, immigrant, or young women and women of color,” said Diaz-Tello.

She also noted the enormous amount of discretion afforded to police and prosecutors in charging people with abortion-related crimes.

“No matter what the law says, once someone decides a woman should be punished for a self-administered abortion, prosecutors will find a way to do it,” Diaz-Tello said.

Harm Reduction in an Era of Unprecedented Restrictions on Abortion

The fewer avenues the legal system and police forces have to criminalize pregnant people, the better. In addition to challenging the use of prisons and police, the best move for advocates looking to provide harm reduction in an era of unprecedented restrictions, hurdles and stigma, is to begin to normalize the notion of self-induction. The distinction between a “safe and legal” abortion and an “unsafe and illegal” one has never been entirely simple, and these days, the lines are further blurred by the spread of information and access to safe, tested, reliable medications. We must stop implying that all abortions outside of an explicitly legal, clinical setting are “unsafe” because most self-induced abortions are complication-free.

The international organization Women Help Women provides accurate, standard information on self-induction protocol on their “Using Abortion Pills for Safe Abortion in the USA. Self-Managed Abortion; Safe and Supported” page. Community-based groups around the country are also building their own educational efforts around self-induction. The more people understand how their bodies work and the full range of safe, reliable options available to them and their communities, the less tenable prosecutions for administering a pill to miscarry will become.

If more constituents start contacting legislators to complain whenever their neighbors are arrested in conjunction with self-induced abortion, that could also shift the political momentum on this issue. Most legislators are counting on constituents being — at the very least — uninformed and uncomfortable enough with the topic that they can proceed without interference.

I say: Let’s start interfering.